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EFF Challenges National Security Letter

Soulskill posted about a year ago | from the letter-of-the-law dept.

Electronic Frontier Foundation 153

sunbird writes "The Electronic Frontier Foundation filed a lawsuit in the United States District Court in San Francisco on behalf of an anonymous petitioner seeking to challenge a National Security Letter (NSL) the petitioner had received. NSLs are issued by law enforcement with neither judicial oversight nor probable cause, and have been discussed on Slashdot before. In response to the lawsuit, the U.S. Department of Justice filed a separate lawsuit against the individual who had received the NSL, requesting that the court order the recipient to comply with the NSL and asking the court to find that the 'failure to comply with a lawfully issued National Security Letter interferes with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.' Both cases are filed under seal, but heavily-redacted filings are available. The cases remain pending."

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153 comments

God Bless America! (5, Interesting)

fuzzyfuzzyfungus (1223518) | about a year ago | (#40711635)

We've managed to reinvent the Lettre de cachet [wikipedia.org]!

Re:God Bless America! (4, Insightful)

Yvanhoe (564877) | about a year ago | (#40711861)

From France, I wish you a happy revolution.

Re:God Bless America! (4, Funny)

Anonymous Coward | about a year ago | (#40712041)

From France, I wish you a happy revolution.

Care to help again?

Re:God Bless America! (3, Insightful)

Anonymous Coward | about a year ago | (#40712449)

The sad fact is, few Americans realize that had France not helped, the US very likely would not exist today.

Comically, the US' existance is France's middle Finger to England.

Re:God Bless America! (1)

Krojack (575051) | about a year ago | (#40712841)

True however we saved them two times. So I think we're one up on them. =)

Re:God Bless America! (2)

crakbone (860662) | about a year ago | (#40713993)

Not the same France. The one the helped the USA was before the revolution. The one your talking about beheaded all the ones that helped save the USA.

Re:God Bless America! (1)

Runaway1956 (1322357) | about a year ago | (#40712671)

My first reaction: We don't need any steenking outside help to kick ass, and tear shit up.

My second reaction is probably more realistic: Americans are such docile sheep, we probably need some outside help to work up the nerve to protest anything.

Re:God Bless America! (3, Interesting)

tibman (623933) | about a year ago | (#40713193)

I've seen all kinds of American protestors but they are generally looked down upon. The masses tell them they are protesting wrong or that they aren't sanitary enough.

Re:God Bless America! (2)

gestalt_n_pepper (991155) | about a year ago | (#40713241)

Americans are docile because they have easy access to cheap high-calorie food, cheap entertainment and cheap antidepressant psychotropics at the local drugstore or Vitamin Shoppe (i.e. St. John's Wort, SAM-E, Holy Basil) as well as cheap energy for heating and cooling. When this is no longer the case, a hot/cold, hungry, un-entertained, hungover populace will lose that docility with extraordinary speed.

All of the aforementioned is possible due to cheap energy and a functioning financial system. What could go wrong? http://www.tumblr.com/tagged/large+government+ammo+purchase [tumblr.com]

Re:God Bless America! (2)

egamma (572162) | about a year ago | (#40713423)

The says that they can purchase "up to" 450 million rounds over 5 years. They could also purchase 500 rounds under that contract. The ammo manufacturer wanted a CYA limitation on the number of rounds they could be asked to provide, so that the government couldn't sue them for breach of contract if the government asked them to provide a billion rounds and the manufacturer was unable to fulfill the order.

Occam's razor. Sometime's a contract is just a contract.

Re:God Bless America! (1)

Anonymous Coward | about a year ago | (#40712249)

The Second American Revolution is long overdue!

Re:God Bless America! (1)

Sloppy (14984) | about a year ago | (#40712847)

Thank you, mon ami. I'll have you know that last weekend, we celebrated Bastille Day by eating French Toast in the morning, French Fries for lunch, and French Dip roast beef sandwiches on a French Bread baguette for dinner. There was also a snack where we ate fancy crackers with cheese on them, while drinking wine (local, though, not imported from France) while watching a cheesy movie (Star Trek First Contract, which features an alt.french.captain.borg.borg.borg).

Yes, really. It happened.

Re:God Bless America! (4, Funny)

GNious (953874) | about a year ago | (#40713225)

Thank you, mon ami. I'll have you know that last weekend, we celebrated Bastille Day by eating French Toast.

Thought that was from Germany

French Fries

Those are dutch-belgian..

French Dip roast beef sandwiches

...invented in Los Angeles

French Bread baguette

That just seems redundant!

But you got pretty close, so points for now being Canadian!

Re:God Bless America! (0)

Anonymous Coward | about a year ago | (#40714415)

Star Trek First Contract? Is that the one where Worf becomes a hitman?

Re:God Bless America! (4, Interesting)

Baloroth (2370816) | about a year ago | (#40712167)

The main difference being NSLs are pretty much not legally enforceable and have, in fact, been ruled against by courts in the US in the past as unconstitutional. Basically, they only "force" they bear is that companies haven't really protested against them, for the most part, finding it easier to simply hand over the information. Also, they can only request partial, non-content records (e.g. "party A dialed party B"). Still probably illegal, but less so.

What's a non-content record? (1)

JSBiff (87824) | about a year ago | (#40712451)

That makes no sense. Even the example given, "party A dialed party B" *is* content. If they have to get information from you, that is content, isn't it?

Also, how is something "less illegal" - I mean, something is pretty much either legal or illegal. I don't see how there's exactly degrees of legality?

Re:What's a non-content record? (1)

David Chappell (671429) | about a year ago | (#40713341)

That makes no sense. Even the example given, "party A dialed party B" *is* content. If they have to get information from you, that is content, isn't it?

Baloroth is distinguishing between a request for data about a communication and the content of the communication itself. The law distringuishes between to two. For example, a warant might authorize the police to attach a "pen recorder" to someone's phone line to see what numbers he dials but not authorize the police to listen in on the conversations.

Re:God Bless America! (1)

WaffleMonster (969671) | about a year ago | (#40714701)

The main difference being NSLs are pretty much not legally enforceable and have, in fact, been ruled against by courts in the US in the past as unconstitutional.

The kicker from my understanding is concept of "third party doctrine" where assertion of 4th amendment protections don't apply when your information is held by someone else.

The net effect as far as I've been able to parse NSLs are just blatently unconstititutional red herrings. They are allowed to persist simply because the third party doctrine wields all the real power.

Stop using "we" (0)

Anonymous Coward | about a year ago | (#40712651)

You had no say in this. You (like most people) probably didn't even know it was happening. That was by design, and the fact that "we" didn't even know says a lot more about the differences between government and the people rather than the similarities.

Apple WTF?!?! (-1)

Anonymous Coward | about a year ago | (#40711651)

So has anyone else here been trying out the latest beta version of OS X Mountain Lion? Here [imageshack.us] is a shot of my desktop. LOL how could anyone *really* work like this? Apple is clearly integrating the wrong aspects of iOS into OSX.

Re:Apple WTF?!?! (2, Informative)

Anonymous Coward | about a year ago | (#40711709)

Don't click that link at work. It's the same gay 69 jpg from yesterday.

Re:Apple WTF?!?! (1)

Anonymous Coward | about a year ago | (#40711811)

Don't click that link at work. It's the same gay 69 jpg from yesterday.

So do you recommend clicking on that link at home?

Re:Apple WTF?!?! (0)

Anonymous Coward | about a year ago | (#40712433)

If you are into that sort of thing, then sure.

Re:Apple WTF?!?! (0)

Anonymous Coward | about a year ago | (#40711877)

I didn't see the gay 69 pic from yesterday, thanks for bringing it to my attention!

Lawful my ass (4, Interesting)

mr1911 (1942298) | about a year ago | (#40711653)

Department of Justice filed a separate lawsuit against the individual who had received the NSL, requesting that the court order the recipient to comply with the NSL and asking the court to find that the 'failure to comply with a lawfully issued National Security Letter interferes with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.'

NSLs are issued by law enforcement with neither judicial oversight nor probable cause

Time for the supreme court to strike NSLs down.

Re:Lawful my ass (0)

Anonymous Coward | about a year ago | (#40711765)

Department of Justice filed a separate lawsuit against the individual who had received the NSL, requesting that the court order the recipient to comply with the NSL and asking the court to find that the 'failure to comply with a lawfully issued National Security Letter interferes with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.'

NSLs are issued by law enforcement with neither judicial oversight nor probable cause

Time for the supreme court to strike NSLs down.

Ha ha ha ha ha ha ha ha..... and for a 0.354 seconds I thought you were serious.
The rule of law has left the US a good decade ago.
Sold by the bunch of asshole monkeys known as the US congress.

Re:Lawful my ass (1)

Anonymous Coward | about a year ago | (#40712301)

Did you miss "without judicial oversight", or did you not realize SCOTUS is made of judges? They've got nothing against oppression, but you gotta get it rubberstamped by a judge, or they'll be outta work.

Re:Lawful my ass (1)

LifesABeach (234436) | about a year ago | (#40712587)

Actually, Congress gives Asshole Monkeys, a bad name. I think of the Congress as being stirred by a group of petty Janissaires, desparetly willing to prostrate themselves before a unloving coward, but a rich coward.

Does anyone believe the Koch brothers should learn to put the "r" back into their name? There, I've said it.

Re:Lawful my ass (1)

HarrySquatter (1698416) | about a year ago | (#40711855)

Sure that is until Congress uses their powers to limit the Supreme Court's appellate jurisdiction to even hear the case since this would not fall under the Supreme Court's original jurisdiction.

Re:Lawful my ass (1)

cpu6502 (1960974) | about a year ago | (#40712025)

The Congress can do no such thing. The Supreme Court's juris diction includes all cases, per the constitution.

Re:Lawful my ass (2)

HarrySquatter (1698416) | about a year ago | (#40712061)

Hahaha you're so wrong it's not even funny. I suggest you look up 'jurisdiction stripping' and read the Exceptions clause of the Constitution (article 3 section 2).

Re:Lawful my ass (0)

Anonymous Coward | about a year ago | (#40712297)

Unfortunately, the "Exceptions Clause" does not read the way you read it. Congress can't circumvent the Constitution, period. You need to work on your reading comprehension. What it says is that they're the court of last resort for pretty much anything other than "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction." and that they can't do what those jokers did with the Obamacare decision- they can only interpret the law within the confines of what was written by Congress within the context of the Constitution and the Amendments.

What happened with Stevens' ruling was Unconstitutional per Article III, Section 2.

What you claimed is bogus.

Re:Lawful my ass (1)

LifesABeach (234436) | about a year ago | (#40712659)

I've got a question, "How is it that an fincanical insturment to limit an investers liability can be considered a person?"

Re:Lawful my ass (1)

Sloppy (14984) | about a year ago | (#40712985)

I've got a question, "How is it that an fincanical insturment to limit an investers liability can be considered a person?"

By persuading people that they would be happier if they would think of it as true.

And yes, you're right: that same technique can be used to modify any part of the constitution, without the usual amendment process.

Re:Lawful my ass (1)

fizzer06 (1500649) | about a year ago | (#40712253)

The Supreme Court's juris diction includes all cases, per the constitution

Can you cite that?

Re:Lawful my ass (4, Informative)

HarrySquatter (1698416) | about a year ago | (#40712289)

He can't because the Consitution actually says:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

This isn't a dispute between states nor does it involve ambassadors, etc. so it falls under the apellate jurisdiction which is subject to Congress' regulation. This is fromArticle 3 section 2.

Re:Lawful my ass (1)

swb (14022) | about a year ago | (#40712075)

It would seem that the Supreme Court would have nearly infinite latitude to rule that some subject X is in fact a Bill of Rights issue and void any congressional attempts to limit its powers.

I took a political science course my senior year in college regarding the Supreme Court and the takeaway on limiting the court's powers seemed to be largely restricted to "packing" the court by raising the number of justices and then appointing friendly justices to the new slots until you had a solid majority.

Re:Lawful my ass (1)

HarrySquatter (1698416) | about a year ago | (#40712103)

Bill of Rights issues aren't part of its original jurisdiction. You've just made something up that has no Constitutional basis.

Flag On Play (1)

RobertLTux (260313) | about a year ago | (#40712695)

a number of amendments are of the form "section X paragraph Y shall be changed to read...." since they are to be considered Patches to the Constitution. So Yes the SCOTUS does rule on the Bill of Rights. (trying to stick an unneeded "original" in does nothing since the SCOTUS must rule on the Constitution AS CURRENTLY AMENDED.

Re:Flag On Play (1)

Antipater (2053064) | about a year ago | (#40712825)

You're misinterpreting the word "original". Original Jurisdiction means the course goes straight to them, rather than being referred on appeal from lower courts. SCOTUS' original jurisdiction is absolute, but their appellate jurisdiction can theoretically be revoked by an Act of Congress.

Re:Lawful my ass (1)

LifesABeach (234436) | about a year ago | (#40712743)

Actually, that's what has been done in the past. [wikipedia.org] But it's going to take the help from Congress; and currently, I don't see the President getting that, yet.

Re:Lawful my ass (1)

Attila Dimedici (1036002) | about a year ago | (#40712869)

The Supreme Court as the final arbiter of whether or not a law is Constitutional has not Constitutional basis. An early Supreme Court ruled that it had such power and everyone since has accepted that such was the case. The defendant in the case where the Court gave itself that power was none other than James Madison considered the "Father of the Constitution" (for legitimate reasons). It would be interesting to know what he would have felt about this ruling if it had not led to the Court finding in favor of his actions.

Re:Lawful my ass (0)

Anonymous Coward | about a year ago | (#40713523)

The court didn't rule in favor of Madison. The court said they didn't have the power to hear the case because the law that allowed them to hear the case was in itself unconstitutional. Thereby giving themselves the power of judicial review and staying out of a sticky political fight.

Re:Lawful my ass (2)

game kid (805301) | about a year ago | (#40712021)

The Court will just rule that NSLs are people, who just happen to have grown valid Federal warrants for their situation within their stomachs. (That last part is important because the US, on behalf of these new People, can just say they have a medical condition that prevents them from producing the warrants, or that they ate them.)

Re:Lawful my ass (0)

Anonymous Coward | about a year ago | (#40712111)

National Security Letters are a tax (on your freedom), therefore they are legal.

--Chief Justice John Roberts

Re:Lawful my ass (1)

girlintraining (1395911) | about a year ago | (#40712477)

Time for the supreme court to strike NSLs down.

You apparently haven't seen some of the Supreme Court's latest rulings. Basically, they're using the Constitution as high-grade toilet paper. You can thank Bush for that. "Can the United States torture people with 6 feet of iron wrought fencing, heated, and no lube, because someone pitched a tent in a public place? Yes."

Good thing the Court is in the USA (3, Interesting)

Mabhatter (126906) | about a year ago | (#40711731)

Its a good thing this court is in the USA. It's like another part of the SAME GOVERNMENT.

Courts don't take kindly to executive branch letters claiming the court cant be involved. My take is that this letter was petty enough, and not urgent, that the EFF thinks they have a shot at getting a judge to review it.

Re:Good thing the Court is in the USA (1)

HarrySquatter (1698416) | about a year ago | (#40711801)

The NSL provisions were created by Congress. And Congress has the Constitutional authority to tell the courts to take a hike.

Re:Good thing the Court is in the USA (1)

bigstrat2003 (1058574) | about a year ago | (#40711911)

But not to tell the Constitution to take a hike, which is pretty much what the NSL provisions are.

Re:Good thing the Court is in the USA (1)

HarrySquatter (1698416) | about a year ago | (#40711979)

Sure, but who's going to stop them? Not the Executive branch and the Supreme Court has no original jurisdiction in the matter so if it wanted to Congress can stop the courts from even hearing the cases.

Re:Good thing the Court is in the USA (1)

AuMatar (183847) | about a year ago | (#40712097)

No, they can't. The constitution gives the supreme court appellate jurisdiction over all cases. All Congress can do is add more layers.

Re:Good thing the Court is in the USA (1)

HarrySquatter (1698416) | about a year ago | (#40712135)

No, it doesn't. Read article 3 Section 2 which explicitly states their original jurisdiction and how their appellate jurisdiction is subject to regulation by Congress.

Re:Good thing the Court is in the USA (4, Interesting)

guibaby (192136) | about a year ago | (#40712447)

To your Article 3 Section 2 argument I raise you Marbury v. Madison.

Re:Good thing the Court is in the USA (1)

bigstrat2003 (1058574) | about a year ago | (#40712141)

How is Congress going to do that? Perhaps there's some legal trick I'm unaware of, but I can't think of any way Congress could actually block a case from being filed in the courts (that seems profoundly unlawful in and of itself, not to mention the public shitstorm that it would raise).

Re:Good thing the Court is in the USA (1)

HarrySquatter (1698416) | about a year ago | (#40712165)

Pass a law that limits the Supreme Court's appellate jurisdiction per their powers granted via Article 3 section 2. They've used this power previously such as during Reconstruction.

Re:Good thing the Court is in the USA (2)

silas_moeckel (234313) | about a year ago | (#40712287)

And the supreme court can rule that unlawful, congresses only recourse would be to impeach them and put in new members nominated by the executive branch. They have expanded there original jurisdiction before. This is not a game of brinkmanship any party wants to get into unless they have an overwhelming majority and the executive.

Re:Good thing the Court is in the USA (1)

HarrySquatter (1698416) | about a year ago | (#40712321)

How is using a Constitutional power unlawful?

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Read the last sentence a couple of times until it sinks in. And, no, the Supreme Court has never expanded its original jurisdiction. You just made that up.

Re:Good thing the Court is in the USA (1)

Anonymous Coward | about a year ago | (#40712595)

You are wrong. http://en.wikipedia.org/wiki/Marbury_v._Madison

Re:Good thing the Court is in the USA (1)

Anonymous Coward | about a year ago | (#40714073)

You are wrong. In Marbury v. Madison [wikipedia.org], the court ruled that they did not have original jurisdiction, because the act of Congress purportedly expanding their original jurisdiction (to include writs of mandamus) was unconstitutional -- Marshall held that the original jurisdiction laid out in the Constitution was fixed and could not be expanded.

(I just realized, maybe you don't know what original jurisdiction [wikipedia.org] means. It's the only way to interpret your assertion with any semblance of knowledge and reason. When you don't know what a legal term means, you don't guess, you look it the hell up.)

And the worst part is, some moron as ignorant as yourself modded you up.

Re:Good thing the Court is in the USA (1)

spongeshard (1297647) | about a year ago | (#40714657)

Here's what I don't understand. Any abnormal powers/liberties/strategy employed by a sitting president or congress will inevitably be used by the other side when they come to office. If you want to ram through legislation, if you want to abuse executive privilege, if you want to stone wall the media... eventually 4,8,12 years later the other side will be doing the exact same thing but with moral authority. Any power you grab now is open for abuse by your opponents when they come to office. If "the other guys" are really so awful as each party bellows, shouldn't they look to limit the other guys power when the tides turn? As in "It would be wonderful if the President could do X but could you imagine what the country would look like in 4 years if their candidate, congressmen Smith, had that power?"

So the letters are ignored. (0)

Anonymous Coward | about a year ago | (#40712285)

So the letters are ignored. Then the courts have to enforce the punishment. Except that the courts refuse because the supreme court rules they cannot breech the constitutional rights of the individual.

Therefore, though now in breech of the restrictions of the NSL, there is no crime prosecuted.

Why, therefore, does the NSL have to be ruled against? Just rule against the courts applying themselves to punishment for not following them.

Re:Good thing the Court is in the USA (1)

Antipater (2053064) | about a year ago | (#40712295)

Sure, but who's going to stop them? Not the Executive branch and the Supreme Court has no original jurisdiction in the matter so if it wanted to Congress can stop the courts from even hearing the cases.

Congress cannot stop a court from hearing a case (they can make a case moot by changing the provisions of a law that's being challenged, but that's a different issue). NSLs have been challenged before in the Doe v. Gonzalez and Doe v. Ashcroft cases, and have been found to violate the First and Fourth Amendments. Though the laws have been tweaked each time to get around the rulings, it shouldn't take many more before they get seriously struck down, possibly by the Supreme Court. And yes, the Supreme Court has jurisdiction. They are the highest authority in the nation (hence "Supreme"). They always have jurisdiction.

Re:Good thing the Court is in the USA (1)

Antipater (2053064) | about a year ago | (#40712529)

Addendum - after reading up on Jurisdiction Stripping, I admit I'm wrong. However, it takes a full act of Congress to declare something unreviewable, and good luck ever getting that past the current partisan gridlock.

Re:Good thing the Court is in the USA (1)

devjoe (88696) | about a year ago | (#40714229)

Correct, the Supreme Court does not have original jurisdiction in the matter of the NSLs. This is why, if you read the heavily redacted documents about the case [eff.org] you will see, on the first page of each document, that this is being heard in US district court in California. If this gets appealed (and that seems likely to me regardless of the outcome), then the Supreme Court will get to hear it based on its appellate jurisdiction, which it has regarding all other cases, as quoted from the constitution by several other poster already.

Re:Good thing the Court is in the USA (0)

Anonymous Coward | about a year ago | (#40713169)

Haven't you heard, the constitution is just a piece of paper. Didn't you get the memo, oh ya it was need to know, 'throw your ass in jail if you talk about it' top secret.

Re:Good thing the Court is in the USA (1)

Baloroth (2370816) | about a year ago | (#40712213)

And Congress has the Constitutional authority to tell the courts to take a hike.

No, they don't. The courts have the Constitutional right to tell Congress to take a hike, though, if anything Congress does or enacts breaks the Constitution (that is a significant part of their job).

Re:Good thing the Court is in the USA (1)

HarrySquatter (1698416) | about a year ago | (#40712251)

Yes they do. The inferior courts were created and vested with power by Congress. The Supreme Court also has no original jurisdiction n this matter and per Article 3 section 2 Congress can restrict the Supreme Courts apellate jurisdiction. Have you people even read the Constitution?

Re:Good thing the Court is in the USA (0)

Anonymous Coward | about a year ago | (#40712279)

The NSL provisions were created by Congress. And Congress has the Constitutional authority to tell the courts to take a hike.

And voters have the duty to tell Congress to take a hike.
A definitive hike by throwing out those sell outs.
Of course this requires an educated and informed populace, and voting for a third party.
No chance in hell. So suck it up "land of free, home of the brave".

Slashdot time machine (0)

Anonymous Coward | about a year ago | (#40711777)

Wow, it's July 17 [eff.org] all over again.

Resistance to tyranny is Fertilizer for liberty (2)

cpu6502 (1960974) | about a year ago | (#40711825)

"failure to comply with a lawfully issued National Security Letter interferes with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security."

Vindication???
That's an odd choice of words. Almost like revenge. (shrug). I would argue that the NSL violates the U.S. Constitution's requirement of a judge-issued search warrant, and an individual's right to be secure in his person, papers, and effects. Therefore the letter is null-and-void from the date of its creation. It is as if the letter never existed, because it has zero force of law.

Re:Resistance to tyranny is Fertilizer for liberty (1)

fuzzyfuzzyfungus (1223518) | about a year ago | (#40712161)

It isn't the primary definition; but 'vindicate' can mean 'to assert/maintain/defend'.

Could just be a curious choice, could also be that the Latin root 'vindicatus/vindicare' can mean 'to lay claim to' in a legal context...

No such thing (4, Informative)

Hatta (162192) | about a year ago | (#40711891)

No NSL is legally issued. They are searches without judicial oversight, and prior restraints on free speech. In violation of amendments 4 and 1. Anyone who made an oath to uphold the constitution would be breaking it if they enforced or issued a NSL in any way.

Re:No such thing (0)

debrain (29228) | about a year ago | (#40712119)

They are searches without judicial oversight, and prior restraints on free speech. In violation of amendments 4 and 1.

I am fairly certain the impugned rights are from the 5th and 14th Constitutional Amendments, and in particular the Due Process Clause [wikipedia.org].

The problem is that the State is issuing orders that affect the rights of individuals, without any opportunity for those individuals to participate or respond in the process giving rise to the order.

There does not appear to be any restraint on speech on these facts.

Re:No such thing (4, Informative)

Hatta (162192) | about a year ago | (#40712155)

I am fairly certain the impugned rights are from the 5th and 14th Constitutional Amendments, and in particular the Due Process Clause.

Those too.

There does not appear to be any restraint on speech on these facts.

NSLs come with a gag order.

Where's PJ when we need her? (4, Interesting)

Zinho (17895) | about a year ago | (#40713685)

I read through a couple of the documents (first and last), and it seems that the FBI lawyers either don't get it or are being intentionally evasive about the issues. Their first-amendment counter-arguments, though, seem to boil down to the following:

* The phone records aren't protected by the first amendment because the parties that want to talk are in a business relationship.
* This censorship isn't harming the company or the subscriber because even if the NSL were public the company wouldn't lose any customers over it. The FBI is sending these letters to everyone, and everyone else is complying, so it's not like the customer can switch providers to get away from it.
* The FBI is interested in the call logs to see who the subscriber is associating with, but this isn't 1960's Alabama, and the customer isn't a member of the NAACP with KKK looking to burn crosses on their lawn as soon as the membership list goes public - the EFF hasn't shown that a specific harm will come to the phone company or the customer as a result of providing the information requested or keeping quiet about it being provided.

The "doesn't get it" part is that the FBI seems intent on ignoring the gag order parts of the NSL in favor of arguing "we totally have a right to that information, and you have no right to keep it from us". It's just amazing, though, that they're able with wide-eyed innocence to ask "what's the harm?" to the judge, as if they were not actively looking to deprive someone of their liberty or life based on associations they'd discover with this request. I guess in their mind that it's OK because it's the FBI instead of the KKK that's doing it - national security and all that. Oh, and the "we're harming everyone the same way, so this specific instance is OK" stance is mind-boggling, too.

Perhaps there's other documents I haven't read that deal with that separately; the most recent filing was a request to compel compliance. I'm sure I'm missing lost of fun details, and that someone with more legal experience could poke more holes in this; it's cases like these that need a running commentary by someone like PJ from Groklaw...

Re:Where's PJ when we need her? (1)

Hatta (162192) | about a year ago | (#40713781)

It's just amazing, though, that they're able with wide-eyed innocence to ask "what's the harm?" to the judge, as if they were not actively looking to deprive someone of their liberty or life based on associations they'd discover with this request.

It's absolutely not amazing if you pay the least bit of attention to civil rights issues. This is totally standard behavior on the part of the thugs in the FBI. And it's almost certain that they will get away with it.

Re:No such thing (0)

Anonymous Coward | about a year ago | (#40712581)

Heh... Why does it continue to amaze me what people clearly don't know about the simple group of laws called the Bill of Rights...

The Fourteenth does NOT apply as it's a NATIONAL Security Letter issued by the Federal government- the Fourteenth largely applies the Bill of Rights explicitly to the States themselves.

The Fifth's due-process clause MIGHT be impugned upon with this as it's not proper Due Process. But...

The Fourth is explictly impugned by this instance as it's being used to circumvent the requirements for Warrant before obtaining information, seizing assets, or people.

The First is explicitly impugned by the laws in general as they also apply a Gag Order involving the nature and content of the letters.

Re:No such thing (1)

ProZachar (410739) | about a year ago | (#40713161)

I would also say that it violates the 6th Amendment. If I refuse to comply with a NSL, they'll probably charge me with something. The NSL would then be evidence. They're not likely to release that in public, which, in my opinion, would violate my right to a public trial. And secret evidence probably flies in the face of the right to a fair trial, again, infringing on the 5th Amendment right to due process.

Re:No such thing (1)

mooingyak (720677) | about a year ago | (#40713163)

The First is explicitly impugned by the laws in general as they also apply a Gag Order involving the nature and content of the letters.

If the gag order is held to be valid, I'm curious if you could still get around it with regards to legal counsel, by claiming attorney-client privilege. In other words, while the conversation obviously happened, no one can actually be compelled to speak about it.

Re:No such thing (0)

Anonymous Coward | about a year ago | (#40712175)

I was only following orders......

Doublethink (2, Interesting)

Anonymous Coward | about a year ago | (#40712179)

from the article:
"EFF brought its challenge on behalf of its client in May of 2011, raising these and other fundamental due process and First Amendment concerns about the structure of these problematic statutes. In response, the Department of Justice promptly filed a civil complaint against the recipient, alleging that by "stat[ing] its objection to compliance with the provisions of" the NSL by "exercis[ing] its rights under" the NSL statute to challenge the NSL's legality, the recipient was "interfer[ing] with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security." "

Ironically, I'm reading 1984 right now. Sounds to me like doublethink. You have the right to challenge the NSL's legality but you have no right to challenge the NSL's legality.

"Freedom is slavery, slavery is freedom."

Re:Doublethink (1)

Anonymous Coward | about a year ago | (#40714265)

Kafka is usually quoted in these situations, which now occur frequently.

Suggest you read The Trial (http://en.wikipedia.org/wiki/The_Trial)

time for the Supreme Court . . . (3, Informative)

societyofrobots (1396043) | about a year ago | (#40712411)

The Fourth Amendment (Amendment IV) ... guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause:
http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution [wikipedia.org]

The Fifth Amendment to the United States Constitution protects witnesses from being forced to incriminate themselves:
http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution [wikipedia.org]

Re:time for the Supreme Court . . . (1)

gestalt_n_pepper (991155) | about a year ago | (#40713291)

The Supreme Court has been as thoroughly purchased as congress. Corporations are people. Money is speech. The court no longer serves the people any more than congress does.

Re:time for the Supreme Court . . . (0)

Anonymous Coward | about a year ago | (#40713995)

The Fourth Amendment (Amendment IV) ... guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause:

Wait, I thought every search conducted by the government was reasonable.

Jews... (-1)

Anonymous Coward | about a year ago | (#40712527)

"'failure to comply with a lawfully issued National Security Letter interferes with the JEWS' vindication of their interests."

There, fixed that for you.

The went to court to enforce court-free NSL (1)

Anonymous Coward | about a year ago | (#40712641)

The went to court to force the receiver to comply with the NSL. However they wouldn't go to court to get a warrant in the first place. The court can be trusted to enforce the NSL, but not trusted to issue the warrant that would have avoided the NSL in the first place.

This is a power grab, they're trying to establish the NSL as a legal authority to bypass court issued warrants. They normally withdraw NSLs when challenged because they don't want to lose the ability to issue them.

Normally the company that receives them will be ATNT or similar, and won't challenge them, just hand over the customer data. The NSL gives them a legal excuse for handing over private customer data beyond what a court would issue, and without having to justify it. Better still the NSL gives them an excuse for keeping it secret, thus avoiding bad publicity.

So Justice Dept must think this would be a good case to use for a land grab, or perhaps it some political game timed for an election. You can never tell with these civil servants.

Is this news? (0)

Anonymous Coward | about a year ago | (#40712729)

No, I'm not new here -- but the links I followed were all from mid-2011. Has anything happened more recently?

Civil War (0)

Anonymous Coward | about a year ago | (#40713131)

IMHO, many (but not all) NSLs are an inherently Unconstitutional and innate violation of our rights at the hand of a powerful authority. In that case the only appropriate response is to simply hold a press release and disgourge the entire contents of the NSL, regardless of the law. Attempting to use the machinery of the very state which is oppressing you, in order to achieve justice, is absurd.

Thank you EFF and plaintiff (1)

moeinvt (851793) | about a year ago | (#40713403)

The 'NSL' is simply cops writing their own search warrants. Direct violation of the 4th Amendment.

The relevant statute also violated the First Amendment because it is illegal for a 3rd party record holder (library, book store, etc,) to inform the individual that their records have been accessed.

Hopefully it gets to the SCOTUS and the whole Patriot Act is ruled un-Constitutional.

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